E-discovery: Litigating in forums without e-discovery rules

This column is the first installment in a series addressing the challenges and opportunities presented by e-discovery in tribunals lacking any rules or published precedents governing e-discovery.

Given the rapid evolution of e-discovery in the federal courts, it is easy to forget that, only five years ago, the e-discovery amendments to the Federal Rules of Civil Procedure had just taken effect, and most federal district courts had not yet adopted any local rules or standing orders addressing e-discovery. Litigating e-discovery issues with the benefit of court rules, standing orders and published precedents is still only a very recent development. However, the current interest of the federal judiciary in addressing the challenges of e-discovery has distracted attention from the fact that complex civil litigation is still proceeding in many state courts and in arbitration without comparable guideposts. The practice of e-discovery in these forums can present very different challenges from current practice in the federal courts, and commentators who focus solely upon the federal courts ignore the realities of what for most large companies are critical e-discovery battlegrounds.

In these forums, counsel potentially enjoy broad freedom to pursue alternative strategies for e-discovery, but also face the challenges of opposing counsel and a judge or arbitrator who are proceeding with the same lack of constraints and may have very different perspectives. This dynamic places extraordinary demands upon trial counsel to assess the e-discovery strengths and vulnerabilities of all parties early in the litigation, predict how opposing counsel and the court may respond to counsel’s e-discovery requests, and then develop and execute an e-discovery strategy.

Of course, when contrasting e-discovery in the state and federal courts, it is easy to exaggerate the extent to which the Federal Rules actually provide any specific guidelines. While creating a useful conceptual framework, the Federal Rules still leave plenty of room for negotiation and individual case management by the court and counsel. In the federal courts, there is a broad spectrum between courts with detailed standing orders dictating precise technical specifications, and courts at the opposite pole that have not yet adopted any further gloss on the Federal Rules. Those federal courts that still have shown no inclination to address proactively the challenges of e-discovery may still have much in common with civil practice in the state courts.

The basic premise of this series is to challenge the notion that the federal district courts and those state courts that have adopted e-discovery standing orders or procedures are the most favorable forums in which to litigate cases requiring complex e-discovery. The most “sophisticated” e-discovery courts are not always the right forum for your client. Where the scope of e-discovery is a key strategic issue, skilled trial counsel will weigh carefully the potential rewards and risks of litigating in a forum without extensive e-discovery ground rules.

Consider, for example, the Delaware federal district court’s current “Default Standard for Discovery, Including Discovery of Electronically Stored Information.” Strictly speaking, this default standard is not binding, but most of its provisions will apply absent agreement of all parties or good cause shown by an objecting party. Although much can be said in praise of the Delaware Default Standard, it is not difficult to imagine cases in which its application could be outcome determinative.

For example, in most business disputes arising from allegations of fraud or other deliberate misconduct, the plaintiff may quite reasonably suspect that the alleged perpetrators have avoided use of email in favor of other modes of electronic communication. Yet, the Delaware Default Standard, except upon a showing of good cause, excuses parties from even preserving mobile phone records, instant messaging and other data from mobile devices.

Requiring a showing of good cause before a party may be compelled even to preserve these communications can create an insurmountable hurdle for plaintiff’s discovery of what may be the most likely sources for “smoking gun” evidence and shield the defendant against sanctions for destruction of evidence. In this context, a plaintiff might have more success in a court with no comparable e-discovery rules, where ignoring a preservation demand may carry greater risk for defendant and where the court hearing a motion to compel may choose as the starting point for its analysis the traditional presumption in favor of disclosure of all relevant evidence, rather than focusing on data accessibility and the cost of collection.

Not surprisingly, effectively addressing these opportunities and challenges depends upon the knowledge and foresight of the litigator. In the columns that follow, we will consider how the litigator can use early case assessments to advise the client on choice of forum and the party’s strategy for the case management conference and commencement of discovery. We then will consider the challenges of litigating complex e-discovery disputes before judges lacking prior experience in this area. Finally, we will consider whether parties should include specific language addressing e-discovery in arbitration agreements or other dispute resolution contract provisions.